What have I been saying?Tokaji told WND the "most likely scenario" for obtaining a judicial determination on the question is if someone would "bring in a state court a challenge to a particular candidate's eligibility to appear on the ballot."How to get eligibility
ruling from Supremes
Lawyer outlines strategy
to prompt court decision
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Posted: May 16, 2009
12:30 am Eastern
By Bob Unruh
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WorldNetDaily
An Ohio State University associate professor who includes election law among his specialties says there is a logical legal strategy to convince the U.S. Supreme Court to rule on the issue of Barack Obama's eligibility to be president.
Daniel Tokaji, in an interview with WND, confirmed the thesis of a "First Impressions" column he'd written for the Michigan Law Review that a lawsuit in a state court probably would have the best chance at success in obtaining a decision.
WND has reported on dozens of legal challenges to Obama's occupancy in the Oval Office based on questions over his "natural born citizen" status. The Constitution, Article 2, Section 1, states, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."
Some of the lawsuits question whether he actually was born in Hawaii, as he insists. If he was born out of the country, Obama's American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.
(Story continues below)
Other challenges have focused on Obama's citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born.
Complicating the situation is Obama's decision to spend sums estimated in the hundreds of thousands of dollars to avoid releasing a state birth certificate that would put to rest all of the questions.
Get the new Whistleblower magazine, called "YOUR PAPERS, PLEASE? Why dozens of lawsuits and millions of Americans want Barack Obama to prove he's constitutionally qualified to be president."
At least half a dozen challenges have been presented to the U.S. Supreme Court, but the justices never have held a hearing on the issues themselves. Many other cases at the trial court level have been dismissed out of hand over "standing" and other issues.
Tokaji told WND the "most likely scenario" for obtaining a judicial determination on the question is if someone would "bring in a state court a challenge to a particular candidate's eligibility to appear on the ballot."
That could produce any number of results, but it could, importantly, create a conflict among state treatments of candidates, into which a Supreme Court likely would step.
"If a 'rogue' state court kicked Obama off the ballot, there's very little doubt in that circumstance that the Supreme Court would interject itself," he said.
His Michigan Law Review article elaborated on the various legal issues involved in challenging a presidential candidate's eligibility.
He concluded that the current crop of federal lawsuits probably cannot be dealt with in a federal court system for several reasons, including that of the plaintiffs' standing.
"Fortunately, there are alternative means to adjudicate this matter that are consistent with the U.S. Constitution," he wrote. "The most promising is a pre-election state-court lawsuit seeking to keep an allegedly unqualified candidate off the ballot. In the event that a renegade state court rejects a candidate who is, in fact, eligible or that two or more state courts reach conflicting conclusions on a candidate's eligibility, U.S. Supreme Court review should be available as a backstop."
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He said such efforts are "less fraught with peril" than leaving the matter to Congress, which also technically is supposed to respond to allegations of ineligibility. Congress is responsible for affirming the Electoral College vote count, but in the 2008 election, it refused to address Obama's eligibility.
"Those who seek to challenge a presidential candidate's eligibility would thus be well-advised to dust off their state election codes and head to state court," Tokaji wrote.
He said the federal court cases that have been filed, which "unquestionably present vital questions of constitutional law, touching on matters of self-evidence national importance," probably simply are not fit to be handled in federal court.
But he admitted the importance of getting an issue resolved, citing the Berg v. Obama case from Pennsylvania that alleged before the Democratic National Convention that Obama was born in Kenya, not Hawaii. The complaint also alleged that his move during his childhood to Indonesia would in any respect cost him his U.S. citizenship.
"Although the assertions in this complaint are extremely far-fetched, in the highly unlikely event that these allegations could be proven, they appear to present a strong argument against Obama's eligibility," he wrote.
But Tokaji said the way federal case law precedents are established, "it is questionable whether anyone would have standing to challenge a presidential candidate's eligibility." He also cited the political question doctrine, which says that some cases simply cannot be decided in federal courts.
"This doctrine stems from the separation of powers, the idea being that the Constitution impliedly entrusts certain decisions to one or both of the political branches," he said.
At the point where the arguments over Obama's eligibility eventually reach a courtroom, there are many valid arguments against his eligibility, according to a paralegal whose research has played a role in some of the pending legal actions.
Leonard Daneman told WND he's written to members of the U.S. Supreme Court suggesting they render an opinion on the definition of "natural born citizen" without addressing the political ramifications, simply to establish a precedent in the law.
"The Supreme Court may feel obligated to ignore, or even dismiss the 'merits' of the numerous eligibility cases due to the political questions doctrine," he told WND. "But the court can still publish ... an apolitical opinion solely on the law, U.S. Const. art. II, § 2, cl. 5, The Natural Born Citizen Eligibility Clause."
He said the overwhelming circumstantial evidence available to date suggests that Obama is not a U.S. citizen, because of his move to Indonesia. He also cites some of the historical records revolving around the writing of the Constitution.
"When the Constitution was being composed, John Jay asked George Washington, 'whether it would not be wise and reasonable to provide a strong check to the admission of foreigners into the administration of our national government and to declare expressly that the command(er) in chief of the American army shall not be given to, nor devolve on, any but a natural born citizen,'" Daneman wrote to the Supreme Court.
"The chief author of the 14th Amendment, Sen. John A. Bingham, wrote, '[E]very human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen,'" Daneman's letter continued.
His suggested the Supreme Court justices release a definition of "natural born citizen" and then "the political questions will then remain in the proper forum, or branch of government."
Tokaji said the Constitution itself clearly recognizes the possibility of an ineligible president, demanding in the 20th Amendment that "if the president elect shall have failed to qualify, then the vice president elect shall act as president until a president shall have qualified."
"Unfortunately," he continued, "it does not explicitly say who is to make the determination whether a president elect has 'failed to qualify.'"
"There is a good reason for believing that this sort of dispute belongs in state court. Article II, Section 1 of the Constitution provides: 'Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress,'" he said.
Aligning with that view was the 2000 election decision by the Supreme Court in Bush v. Gore. The high court found the state supreme court's construction of certain provisions of state election law went beyond the bounds of proper statutory interpretation. Yet none of the justices disputed that state courts may hear cases alleging violations of state election states, Tokaji found.
He concluded that because a state court's opinion would be based on federal law, the U.S. Supreme Court then could hear the case on a petition for writ of certiorari.
"This is true even if the original state-court action would not have been justiciable in federal court," he said.
